Theft 2 In this lecture, we will consider the mens rea of theft.

Mens Rea Involves two elements - 1. Dishonesty, and 2. Intention Permanently to Deprive

Dishonesty A partial definition of "dishonesty" is provided in S.2 of the 1968 Act which provides 3 specific instances in which a person’s conduct will not be regarded as dishonest for the purposes of theft. S.2(1) states that: “(1) A person's appropriation of property belonging to another is not to be regarded as dishonest - (a) If he appropriates the property in the belief that he has in law the right to deprive the other of it, on behalf of himself, or of a third person; or

(b) If he appropriates the property in the belief that he would have the other's consent if the other knew of the appropriation and circumstances of it; or (c) (Except where the property came to him as trustee or personal representative), if he appropriates the property in the belief that the person to whom the property belongs cannot be discovered by taking reasonable steps.

Section 2(1) is purely subjective, based on D’s belief as to his right to deprive someone of the property, see Small (1987).

s.2(2) “A person's appropriation of property belonging to another may be dishonest notwithstanding that he is willing to pay for the property."

Example D takes a bottle of milk from V’s doorstep but leaves money there to cover the full cost of the milk. Without s.2(2) there would be doubt as to whether this could be dishonest. However, as the question as to whether D was dishonest is for the jury to decide, they may well determine D was not dishonest where he paid or intended to pay.

Dishonesty at large It does not mean that because conduct does not fall within the scope of the three situations covered by s.2 (1) it must be regarded as automatically dishonest. The issue of dishonesty is entirely a question of fact for the jury who require no help from the judge to determine this issue (Feely (1973)). To what sort of problems does this give rise?

Test for dishonesty is that in Ghosh (1982): According to the ordinary standards of reasonable and honest people was what was done dishonest? If it was not dishonest by those standards, that is the end of the matter. If it was dishonest by those standards, then the jury must consider whether D himself must have realised that what he was doing was by those standards dishonest.

NB Ghosh still allows for the Robin Hood defence.

Price (1989) - judge is not required to direct the jury on the meaning of dishonesty unless there is evidence that when D appropriated the property he held one of the s.2 beliefs or he claims he was not dishonest according to Ghosh e.g. he says he intended to repay the money or he did not think what he did was dishonest.

Intention to permanently deprive See s.6(1): "A person appropriating property belonging to another without meaning the other permanently to lose the thing itself is nevertheless to be regarded as having the intention of permanently depriving the other of it if his intention is to treat the thing as his own to dispose of regardless of the other's rights: and a borrowing or lending of it may amount to so treating it if, but only if, the borrowing or lending is for period and in circumstances making it equivalent to an outright taking or disposal."

Disposal regardless of the other’s rights The first part of S.6 (1) was seen in Lloyd (1985) as designed to cover the kind of situation where, e.g. D takes P's property intending to sell it back to P. D pawns P's property and sends P the pawn ticket. D takes an item from P, the owner, intending to return it on some condition being met by P (the ransom principle).

“to dispose of” See Lavender (1994) A disposal could include disposal to the owner of the property and could include dealing with the property. The correct question to ask was: did D intend to treat the doors as his own, regardless of the council’s rights? Ans = yes, he had dealt with them, regardless of the council’s rights not to have them removed = an intention to treat the doors as his own.

Also see Marshall (1998)

Borrowing In LLoyd, the latter part of s.6(1) was seen as designed to cover the kind of situation where, e.g.: D borrows P's railway ticket, uses it to get a free ride and then returns it to P. D borrows P's soccer or theatre season ticket, uses it to see the season’s games or performances and then returns the ticket to P. D borrows P's non-rechargeable batteries, uses them until they are flat and then returns them to P. For a borrowing to constitute an intention to permanently deprive, the intention must be to return the thing in such a changed state that all its goodness or virtue was gone.

Conditional intention What if D only intends to keep the property if he finds it to be worth keeping after he has examined it? See Easom (1971) - D must form a definite intention to permanently deprive the owner of the particular property alleged to be stolen.

If D appropriates money intending to spend it but to repay the owner with different coins/notes, he still has an intention to permanently deprive of the particular coins/notes he took (Velumyl (1989)). However, he may not be considered dishonest.